PATERNALISM

The term paternalism has long been in currency among moral and political philosophers, but its circulation became much wider, and its definitions much more precise, following the widely read debate over "the legal enforcement of morality" between Patrick Devlin (The Enforcement of Morals, 1965) and H. L. A. Hart (Law, Liberty, and Morality, 1963). Hart had endorsed the liberal doctrine of J. S. Mill, that the only legitimate reason for state interference with the liberty of one person is to prevent him from harming other persons. Mill was especially emphatic in denying that the actor's "own good, either physical or moral," is ever an adequate reason for interference or criminal prohibition ([1859], 1985, p. 9). What Mill denied in this passage is precisely what came to be called "legal paternalism" in the writings of his followers, including Hart nearly a century later. Thus, paternalism was regarded as a thoroughly unacceptable view by nineteenth-century liberals.

Physical and Moral

In his exchange with Devlin, however, Hart conceded that a certain amount of physical paternalism could be accepted by twentieth-century liberals, here departing from Mill who, he wrote, "carried his protests against paternalism to lengths that may now appear to us as fantastic" (Hart 1963, p. 32). He cited, for example, Mill's criticism of restrictions on the sale of drugs. Devlin then responded by drawing a distinction between "physical paternalism," which protects people from physical harm that could be caused by their own voluntary conduct, and "moral paternalism," which offers similar protection against "moral harm" of the actor's own causing. Devlin could see no consistent way in which the physical paternalist like Hart could avoid commitment to moral paternalism, for if it is the prevention of harm that justifies prohibition in the one case, why not use state power to prevent an equal amount of harm, though of a different kind, in the other case? Similarly, Devlin concluded, there is no relevant difference between criminalization meant to prevent moral harm and criminal prohibitions meant to "enforce the moral law as such." The view that "enforcement of morality," quite apart from harm prevention, is a valid reason for criminal prohibitions is widely called "legal moralism." It is anathema to liberals.

One way in which liberals sometimes defend themselves from Devlin's argument is by maintaining that Devlin's moves from physical to moral harm and from preventing moral harm to "enforcing the moral law" do not follow logically. One liberal critic, Joel Feinberg (1986), even goes so far as to deny, in the teeth of the immense combined authority of Plato and Aristotle to the contrary, that "moral harm" is a coherent concept.

Hard and Soft

A distinction is commonly made between hard (or strong) paternalism and soft (or weak) paternalism. Hard paternalism justifies the forcible prevention of some dangerous but self-regarding activities even when those activities are done in a fully voluntary (i.e., free and informed) way. Soft paternalism, on the other hand, permits individuals or the state to prevent self-regarding dangerous behavior only when it is substantially nonvoluntary or when temporary intervention is necessary to establish whether it is voluntary or not.

Most soft paternalists are liberals strongly opposed to paternalism. Most of them, when they think of the paternalism they oppose, think of what is here called hard paternalism. Therefore they would prefer to go by the name of soft antipaternalists. The term hard antipaternalism could be reserved for the totally uncompromising liberal who would oppose interference even with some choices known to be involuntary, and with temporary compulsory intervention that is only for the purpose of determining whether the intended conduct truly is voluntary, and even with the imposition of compulsory education about risks or state-administered tests to assess the dangerous actor's understanding of the risks, with licenses required for self-regarding dangerous behavior, like mountain climbing. Clarity would be improved if philosophers would speak of paternalism only when what is meant is hard paternalism, justifying prohibition even of wholly voluntary self-regarding conduct, when dangerous. Then soft and hard antipaternalism would be the names of a moderate and extreme liberalism, respectively.

The controversy over paternalism in the criminal law is genuine and difficult. Those who are strongly opposed to paternalism find it not only mistaken but arrogant and demeaning. It is very difficult to reconcile it with even a minimal conception of personal autonomy (rightful self-government) when it proclaims that state officials may rightfully intervene even against my protests to "correct" my choices, and this on the ground that they know what is good for me better than I do myself. But if we reject paternalism altogether, we seem to fly in the face both of common sense and of long-established customs and laws. The state, for example, does not accept "consent" as a justification for mayhem or homicide. Similarly, the law of contracts will not validate certain agreements even though they are voluntary on both sides—when, for example, they are usurious or bigamous. One would be hard put to accept these traditional state-created disabilities without abandoning one's opposition to paternalism. But if we continue our adherence to paternalism, we may discover that in other areas paternalism justifies too much, the flat-out prohibition, for example, of whiskey, cigarettes, and fried foods, which tend to be bad for people too, whether they know it or not.

Medical Contexts

Writers on medical ethics confront paternalism at every turn, often in human contexts that are less familiar to those whose interest is primarily focused on criminal law. Those characteristic social situations have led to some forms of ethical analysis supplementary to those that prevail among the critics and defenders of "legal paternalism." For example, not all of the moral problems raised by paternalism in medical settings are problems for legislators drafting mandatory rules or other governmental officials such as judges or police officers. Moreover, paternalism is not exclusively a criterion for the legitimacy of coercion. Sometimes what is at issue is some other practice that normally has high moral costs, most notably deception rather than coercion, as in false but comforting statements to frightened patients or the unacknowledged or mendacious use of placebos. Sometimes a medical provider may have to decide whether to tell a "white lie" to his patient, not for the sake of her health, but rather as a way of preventing her from experiencing intense despair in her final hours about a matter having no direct connection with medical treatment. In a hypothetical case invented by C. M. Culver and B. Gert (1976, p. 46), a woman on her deathbed asks her physician how her son is doing, and the doctor replies that he is doing well even though he knows that "the son has just been killed trying to escape from jail after having been indicted [a fact unknown to his mother] for multiple rape and murder." An opponent of (hard) paternalism would probably consider the doctor's mendacity to be a violation of the patient's autonomy. A medical paternalist would probably argue that the truthful alternative in this case would be cruel to the point of indecency. They might both be right.

Pros and Cons

Problems involving paternalism in medical contexts are quite diverse. They include not only truth-telling cases but also suicide attempts, requests for euthanasia, and the use of human volunteers in dangerous experiments. The paternalist position in these conflicts is that protecting volunteers or patients from harm and promoting their benefit should take precedence over respecting their autonomy by permitting them to act freely on their well-informed choices in matters that are almost exclusively self-regarding.

T. L. Beauchamp (1977) and Beauchamp and J. F. Childress (1979) in their influential works rejected hard paternalism nearly categorically, emphasizing that to overturn the deliberate choices of adult human beings that affect only them, or only them clearly and directly, is to deny that their lives really belong to them. The apparent exceptions—cases in which commonsense morality would seem to justify interference with the patient's voluntary choice—invariably turn out to be cases in which that choice is not fully voluntary after all; that is, the patient or volunteer subject had not been adequately informed about the risks he would be accepting, or he was not perfectly free of coercive influences, or some other condition, such as infancy, drug intoxication, high fever, rage, or depression, had diminished his capacity to act rationally. To restrict his liberties in such circumstances, or to motivate him by telling him a lie, would be to interfere with actions that are not fully voluntary in the first place. To interfere with dangerous self-regarding but less-than-voluntary behavior can be justified by soft paternalism (that is by soft and hard antipaternalism). Another example illustrates the point. "If we see a normally calm person who we know has been experimenting with hard drugs, go into a sudden frenzy, and seize a butcher knife with the clear intention of cutting his own throat, then [of course!] we have the right to interfere. In so doing we will not be interfering with his real self or blocking his real will.… His drug-deluded self is not his 'real self,' and his frenzied desire is not his 'real choice,' so we may defend him against these internal threats to his autonomous self, which is quite another thing than throttling that autonomous self with external coercion" (Feinberg 1986, p. 14). Interference on this ground is no more paternalistic than interference designed to protect an individual from an attack by some berserk assailant. Paternalists have been quick to point out, however, that this example, and others like it, hardly fit the more usual examples of risky choice making.

Writing from the practical point of view, and a philosophical position more friendly to paternalism, Culver and Gert (1982), in response to Beauchamp, point out that many crucial questions remain for the soft antipaternalist analysis. Most of these stem from the vagueness of the distinction between voluntary and nonvoluntary. Culver and Gert remind us that voluntariness is usually a matter of degree with no conveniently placed bright lines to guide us. In this respect it resembles the concept of harm (which is also crucially involved in hard paternalists' calculations) and the degree of violation of a moral rule, like that forbidding telling lies, or that condemning coercion, and even the degree to which the overruled choices of, say, a patient, are purely self-regarding—another essential variable.

Culver and Gert, however, do not endorse the hard paternalistic position without limit. Rather, they hold that some (hard) paternalistic interventions are justified, and some are not, but reject the unqualified antipaternalism of Beauchamp and Childress, which denies that (hard) paternalistic prohibitions and interferences are ever justified, and the unqualified paternalism of many utilitarian writers, which holds that all paternalistic behavior is justified, except that which will be counterproductive in the long run.

See also Aristotle; Bioethics; Hart, Herbert Lionel Adolphus; Liberty; Mill, John Stuart; Plato.

Bibliography

Arneson, Richard. "Paternalism, Utility and Fairness." Revue Internationale de Philosophie 170: 409–423.

Beauchamp, T. L. "Paternalism and Bio-behavioral Control." Monist 60 (1977): 62–80.

Beauchamp, T. L., and J. F. Childress. Principles of Biomedical Ethics. New York: Oxford University Press, 1979.

Brennan, Samantha. "Paternalism and Rights." Canadian Journal of Philosophy 24 (1994).

Brock, D. "Paternalism and Promoting the Good." In Paternalism, edited by R. Sartorius. Minneapolis: University of Minnesota Press, 1983. This is one of the leading statements of a qualified utilitarian theory of paternalism.

Culver, C. M., and B. Gert. "Paternalistic Behavior." Philosophy and Public Affairs 6 (1976): 45–47.

Culver, C. M., and B. Gert. Philosophy in Medicine. New York: Oxford University Press, 1982.

Devlin, P. The Enforcement of Morals. London: Oxford University Press, 1965.

Dworkin, G. "Paternalism." Monist 56 (1972): 64–84. An influential early article that helped shape twenty years of discussion.

Dworkin, G. "Paternalism: Some Second Thoughts." In Paternalism, edited by R. Sartorius, 105–113. Minneapolis: University of Minnesota Press, 1983.

Dworkin, Gerald. "Moral Paternalism." Law and Philosophy. 2005.

Dworkin, Gerald. "Paternalism." The Stanford Encyclopedia of Philosophy (Winter 2002), edited by Edward N. Zalta.

Dworkin, Ronald. "Equality and The Good Life." In Sovereign Virtue, 268–270. Cambridge, MA: Harvard University Press, 2000.

Faden, R. R., and T. L. Beauchamp. A History and Theory of Informed Consent. New York: Oxford University Press, 1986. The definitive work on its subject.

Feinberg, J. The Moral Limit of the Criminal Law. Vol. 3: Harm to Self. New York: Oxford University Press, 1986.

Freeman, Samuel. "Liberalism, Inalienability, and Rights of Drug Use." In Drugs and the Limits of Liberalism, edited by Pablo DeGrieff. Ithaca, NY: Cornell University Press, 1999.

Goldman, Alan. "The Refutation of Medical Paternalism." The Moral Foundations of Professional Ethics. Towata: Rowman & Littlefield.

Hart, H. L. A. Law, Liberty, and Morality. London: Oxford University Press, 1963.

Husak, Douglas N. "Legal Paternalism." In The Oxford Handbook of Practical Ethics, edited by Hugh LaFollette. New York: Oxford University Press, 2003.

Kleinig, J. Paternalism. Totowa, NJ: Rowman and Allanheld, 1983.

Mill, J. S. On Liberty (1859). Indianapolis, 1985.

Sartorius, R., ed. Paternalism. Minneapolis: University of Minnesota Press, 1983. This excellent collection includes, in addition to the selections by Brock and Dworkin already cited, fifteen useful articles and a superb bibliography.

Shiffrin, Seana Valentine. "Paternalism, Unconscionability Doctrine, and Accommodation." Philosophy and Public Affairs 29 (Summer 2000): 205–250.

Sunstein, Cass, and Richard Thaler. "Libertarian Paternalism Is Not an Oxymoron." University of Chicago Law Review 70 (Fall 2003): 1166.

VanDe Veer, D. Paternalistic Intervention: The Moral Bounds of Intervention. Princeton, NJ: Princeton University Press, 1986.

Joel Feinberg (1996)

Bibliography updated by Gerald Dworkin (2005)